BT's EE threatens legal action over spectrum caps

BT-owned mobile operator EE has threatened legal action against Ofcom over caps set to be imposed in an upcoming spectrum auction, following a sustained campaign by CK Hutchison’s Three UK.

Regulator Ofcom announced plans to impose a 340MHz cap on UK operators for “usable spectrum” in order to balance out the shares of spectrum holdings in the country. BT owns licenses for around 42% of all UK spectrum.

Three had long campaigned for the introduction of a cap, but claimed Ofcom’s measures had fallen short, with CEO Dave Dyson threatening to take the regulator to court.

O2 also warned that Ofcom’s measures fell short, but warned that legal action could potentially delay the deployment of 5G in the UK, something Dyson has denied.

It is this concern that has prompted EE to write to Ofcom, saying it will challenge the measures in a UK high court, according to an EE spokesperson.

The EE spokesperson said: “In response to Three’s action, we have made the difficult decision to challenge the proposed structure of the next auction of mobile spectrum. We need to protect our customers’ mobile experience, and help build the platform for the UK to have the highest quality 5G networks.”

EE had initially said they would not appeal against Ofcom's restrictions, saying to do so could delay spectrum allocation, and have squarely pointed blame for this appeal at Three.

Three’s Dyson claims any delay caused by its potential legal action would only last up to three months, with no auction likely to take place during that time. However, this has been disputed, and would only be the case should Three lose its legal case.

Three declined to comment, but sources close to the operator said BT's legal bit is seen as "opportunistic" by the Hutch-owned company.

According to the Telegraph, EE has offered to step aside from an upcoming 2.3Ghz spectrum auction, but only if any cap on allocations does not include 5G bands, with separate auctions.

Telefonica UK CEO Mark Evans has warned the legal disputes between its rival operators and Ofcom will “cause delay to the auction and gives no thought to the impact and harm this will have to UK customers, UK Plc and economic growth”.

He added: “Should litigation go ahead, it must be expedited. In addition, and even more importantly, on the basis that all operators have accepted the rules for 2.3GHz, Ofcom should go ahead with auctioning this immediately either on a permanent or temporary basis. This would allow spectrum to be used whilst a potentially protracted legal process in relation to the 3.4GHz spectrum is contested.

“This country desperately needs more mobile airwaves. It is possible to hold the 2.3GHz auction now and grant immediate access to the newly-available spectrum. Ofcom can and must act."